Robert McKeage, on behalf of themselves and all others similarly situated; Janet McKeage, on behalf of themselves and all others similarly situated Plaintiffs - Appellants
Bass Pro Outdoor World, LLC; TMBC, LLC; Tracker Marine Retail, LLC Defendants - Appellees
Submitted: September 25, 2019
from United States District Court for the Western District of
Missouri - Springfield
KELLY, MELLOY, and STRAS, Circuit Judges.
and Janet McKeage filed this class action lawsuit in 2009.
They alleged that TMBC's nationwide practice of charging
a fee for preparing legal documents when selling boats and
trailers constituted unauthorized law business in violation
of Mo. Rev. Stat. §§ 484.010 and 484.020. The
district court granted summary judgment to the class and
awarded attorney's fees and costs from the common fund.
We affirmed the grant of summary judgment but reversed and
remanded the award of attorney's fees and costs,
directing the district court to enforce a contractual
fee-shifting provision that entitled the class to recover
"all litigation costs and expenses, including reasonable
attorneys' fees" from TMBC. On remand, the district
court shifted $2, 398, 353.09 in attorney's fees to TMBC
but awarded $700, 000 in costs from the common fund.
McKeages appeal. They contend that the district court erred
in awarding costs from the common fund, in denying as
"speculative" $18, 633.56 in future costs, and in
declining to award additional attorney's fees from the
common fund. TMBC counters that the class members lack
standing to bring this action. We conclude that the
plaintiffs have standing, and we find no error in the amount
of attorney's fees and costs awarded, but we reverse the
district court's decision to award the plaintiffs'
costs from the common fund rather than shifting them to TMBC.
ten years of litigation, TMBC asserts, for the first time,
that the class members lack standing because they voluntarily
agreed to pay the document fee as part of their boat
purchases. In TMBC's view, the class members were not
injured because they "wanted what they got and got what
they wanted." We disagree.
class members have a statutory right not to be charged for
law business by a non-attorney. TMBC's violation of that
right caused a "particularized" injury that
affected the class members in a "personal and individual
way." Spokeo, Inc. v. Robins, 136 S.Ct. 1540,
1548 (2016) (citation omitted). Paying a fee they should not
have been charged was also a "concrete" injury, not
an "abstract" one that does not "actually
exist." Id. (cleaned up). Thus, the class
members suffered an injury in fact and have standing to bring
this action. Cf. Hargis v. Access Capital Funding,
LLC, 674 F.3d 783, 791 (8th Cir. 2012) (a plaintiff who
did not pay a fee for unauthorized legal services did not
have standing to bring an unauthorized-practice-of-law
district court initially awarded the class $2, 425, 359.42 in
attorney's fees from the common fund (33% of the
plaintiffs' untrebled damages). McKeage v. Bass Pro
Outdoor World, L.L.C., No. 12-03157-CV-S-GAF, 2015 WL
13637253, at *5 (W.D. Mo. Aug. 11, 2015). We reversed,
finding it inequitable for the common fund to pay the entire
fee award when a contractual fee-shifting provision entitled
the class to recover "all litigation costs and expenses,
including reasonable attorneys' fees" from TMBC.
McKeage, 847 F.3d at 1004. However, because there is
"a distinction between the amount a losing party may be
required to pay under an agreed-upon contractual fee-shifting
provision and the amount a class member should equitably be
required to pay his or her own lawyer under the common fund
doctrine," we left the decision of whether to award
additional fees from the common fund to the district
court's discretion. Id.
remand, the district court awarded the class $2, 398, 353.09
in attorney's fees, to be paid by TMBC, under the
lodestar method. It declined to award additional
attorney's fees from the common fund. On appeal, the
McKeages do not contest the district court's lodestar
calculation or the amount it shifted to TMBC. They argue only
that the district court abused its discretion in not awarding
additional attorney's fees from the common fund.
emphasized in our prior opinion that the decision of whether
to award additional fees from the common fund was
discretionary. McKeage, 847 F.3d at 1004. In
awarding only the lodestar amount, the district court
effectively decided that it was not inequitable for the class
to receive the full damages award while class counsel
received a presumptively reasonable fee from TMBC. See
City of Burlington v. Dague, 505 U.S. 557, 562 (1992)
("We have established a strong presumption that the
lodestar represents the reasonable fee." (cleaned up)).
The McKeages have not contested the district court's
lodestar calculation, and we find no abuse of discretion in
the district court's decision to award only that amount.